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NEWSLETTER 2011

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b) Defenses (plea):

According to Article 497 of the TCO “

surety,

shall benefit from, and also oblige to bring, all defenses which arise from

the primary liability relation, those are belonging to the obligor

” whereas

this opportunity is not granted to the guarantor thus the guarantor cannot

assert those defensive arguments against the creditor.

c) Right of Recourse:

The surety shall be the successor of the

creditor’s rights against the obligor, limited to the amount paid to the

creditor by the surety. Therefore, as it is specified in Article 496 of the

TCO, “

surety has the right to recourse to the obligor up to the amount

which had been paid by the surety to the creditor

” whereas this right is not

granted to the guarantor and accordingly he cannot raise a reimbursement

claim against the obligor arising out of succession.

d) Benefit of the Guarantor

Another significant feature of the

guarantee agreement is that the guarantor shall obtain a benefit in

exchange of standing as the guarantor. According to the Turkish legal

doctrine, the existence of a (direct or indirect) benefit is an essential

criterion to determine the nature of the agreement, i.e. whether there is

a surety agreement or a guarantee agreement. If a third person does not

have any benefit in the performance of the underlying contractual relation

between two parties, then the nature of the performing third person’s

undertaking will be deemed a surety agreement.

Conclusion

As explained in detail above, when the changes in the NTCO reviewed,

the new adopted provisions seem to serve for the protection of the surety.

In addition, the application of the provisions such as consent of

spouse or formal requirements to the other security agreements will limit

the freedom of contract and possibly the parties will find its significant

reflection in the implementation. In light of the above, the criticism

claiming that the NTCO is aiming “

to take side and to provide special

treatment for one of the parties

”

turns out to be right for the suretyship

and other security agreements.

Başpınar, Veysel

:“Hukuk Tekniği Açısından Türk Borçlar Kanunu Tasarısının

Değerlendirilmesi”, Ali Naim İnan’a Armağan, Anakara, 2009,s.220-221.